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TMI Blog2019 (10) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court, in Bhau Ram [supra]. There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, Under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public. 2. With the passage of time, such laws of pre-emption, which existedin many States were abrogated, and it is on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or transfer of the said portion or [share of the plot of land] to him, subject to the limit mentioned in [Section 14M,]on deposit of the consideration money together with a further sum of ten per cent of that amount: xxxx xxxx xxxx xxxx xxxx "9. Revenue Officer to allow the application and apportion lands in certain cases.--(1) On the deposit mentioned in Sub-section (1) of Section 8 being made, the Munsif shall give notice of the application to the transferee, and shall also cause a notice to be affixed on the land for the information of persons interested. On such notice being served, the transferee or any person interested may appear within the time specified in the notice and prove the consideration money paid for the transfer and other sums, if any, properly paid by him in respect of the lands including any sum paid for annulling encumbrances created prior to the day of transfer, and rent or revenue, cesses or taxes for any period. The Munsif may after such enquiry as he considers necessary direct the Applicant to deposit such further sum, if any, within the time specified by him and on such sum being deposited, he shall make an order that the amount of the consideration m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o by the Respondent, by asserting that the balance amount could only be paid once the Appellants proved the consideration that had been paid under the Sale Deed and in case the court found so, directions could be issued for payment of further sum, if any, at that time, when the application Under Section 8 of the said Act would be allowed. One of the grounds for claiming so was that if the payment was made at a stage of filing the application Under Section 8 of the said Act, then in the eventuality that the right of pre-emption was not enforced for any reason, there was no provision contained in Section 9 of the said Act for refund of the amount deposited. 7. The trial court found in favour of the Respondent by opining that firstly, the actual consideration amount had to be proved by the transferee and secondly, on such inquiry being made, the balance could be deposited on a direction by the court. The court further opined that the sum was non-refundable since no specific provision was made regarding repayment of the excess consideration, if any. 8. The Appellants took up the matter in Misc. Appeal No. 286/2007, before the 11th Additional District Judge, Alipore, and succeeded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Munsif would the occasion arise to deposit the balance amount. Right of Pre-emption: 10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subbarao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh and Ors. v. Khazan Singh and Anr., AIR 1958 SC 838 in a four Judge Bench judgment. The Bench proceeded to discuss the view of different Courts on this right of preemption, as found in the following: a. Plowden, J. in Dhani Nath v. Budhu 136 P.R. 1894. b. Mahmood, J. in Gobind Dayal v. Inayatullah (1885) ILR 7 All 775, 809. c. Mool Chand v. Ganga Jal (1930) ILR 11 Lahore (F.B.) 258, 273. 11. In view of the aforesaid elucidation, it was opined that the pre-emptor has two rights: first, the inherent or primary right, i.e., right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of preemption is simply a right of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -emption contained in Section 16(3) has since been repealed. The relevant provision reads as under: 16.-Restriction on future acquisition by transfer etc. ..... ..... ..... ..... ..... (3) (i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. The object of the aforesaid Sub-section was observed to be to secure consolidation, by giving a right of re-conveyance to a co-sharer or raiyat to an adjoining area, to facilitate the use of land in a more advantageous manner and to prevent fragmentation. It was categorically observed that "...In te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), which begins with "on the deposit mentioned in Sub-section (1) of Section 8" 18. Learned Counsel for the Respondent sought to refer to the judgments of the Calcutta High Court, in the Sahid Ali case [supra] , Jyotish Chandra Sardar v. Hira Lal Sardar ILR 1971 (1) Calcutta 213, as also to two other cases, in Amitava Shit v. Bablu Kundu 2014(1) CHN (Cal) 744 and Smt. Aparna Maity v. Smt. Purabi Das [C.O. No. 3859/2015 AGM 2016 decided on 19th December, 2016]. 19. If one may say so, the latter two are really in the nature of orders, not elucidating any law, other than relying on the principles set out in the Sahid Ali [supra] case (a Division Bench view, as against the Single Judge Bench view in the latter two cases). The Sahid Ali [supra] case, in turn, has relied upon the judgment in the Jyotish Chandra Sardar [supra] case. 20. The common thread which goes through all these judgments is that an inquiry into the stated consideration was envisaged Under Section 9 of the said Act, on a conjoint reading of Sections 8 & 9 of the said Act. It may be noticed that the Jyotish Chandra Sardar10 case sets out a factual matrix where the mechanism for deposit of the amount was not enforced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply, while interpreting Section 8 of the said Act, then the requirement of deposit of the amount along with the application, within the time stipulated is sacrosanct. The amount to be deposited is not any amount, as that would give a wide discretion to the pre-emptor, and any pre-emptor not able to pay the full amount, would always be able to say that, in his belief, the consideration was much lesser than what had been set out. If we read the judgment in the Gopal Sardar [supra] case, in its true enunciation and spirit, there is sanctity attached to both, the amount and the time frame. There cannot be sanctity to the time frame, incapable of extension even by the Limitation Act, and yet, there be no sanctity to the amount. 24. In the context of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, the recent view of this Court, in the context of the relevant provision (now repealed [Vide Section 2 of The Bihar Land Reforms (Fixation of Ceiling Area and acquisition of Surplus Land) (Amendment) Act, 2019]), itself puts a pre-condition for the exercise of the right of pre-emption, by requiring the deposit of the full stated purchase money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be done only upon payment of the full amount, along with the application. In this aspect, the phrase "the remainder, if any, being refunded to the applicant" would include to mean the repayment of the initial deposit made along with the application, if considered to be excess. To give any other connotation to these Sections would make both, the latter part of Section 8 of the said Act and the inception part of Section 9 of the said Act, otiose. We do not think such an interpretation can be countenanced. 27. In our view, when the inquiry is being made by the Munsif, whether in respect of the stated consideration, or in respect of any additional amounts which may be payable, the pre-requisite of deposit of the amount of the stated consideration Under Section 8(1) of the said Act would be required to be fulfilled. The phraseology "the remainder, if any, being refunded to the applicant" would have to be understood in that context. The word "remainder" is in reference to any amount which, on inquiry about the stated consideration, may be found to have been deposited in excess, but it cannot be left at the own whim of the Applicant to deposit any amount, which is deemed proper, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that the impugned order and the view adopted would make a weak right into a 'speculative strong right', something which has neither historically, nor in judicial interpretation been envisaged. 33. The last question which arises is whether the Respondent can now be granted time to deposit the balance amount. When the direction was so passed, in pursuance of the order of the appellate court, the Respondent still assailed the same. The requirement of exercising the right within the stipulated time, in respect of the very provision has been held to be sacrosanct, i.e., that there can be no extension of time granted even by recourse to Section 5 of the Limitation Act [Gopal Sardar v. Karuna Sardar (supra)] 34. As we have discussed above, once the time period to exercise a right is sacrosanct, then the deposit of the full amount within the time is also sacrosanct. The two go hand-in-hand. It is not a case where an application has been filed within time and the amount is deficient, but the balance amount has been deposited within the time meant for the exercise of the right. We are saying so as such an eventuality may arise, but in that case, the right under the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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